Plaintiffs filed a complaint in this Court on December 13, 1995,
alleging systemic deficiencies in the administration of the New York City
child welfare system. The complaint sought declaratory and injunctive
relief against various officials of the City of New York (the "City
defendants" or "defendants") and various officials of the State of New
York who were responsible for the operation or oversight of New York's
child welfare system.*fn1

At the same time they filed their complaint, plaintiffs moved for class
certification seeking to represent a class consisting of all children who
were in or would be in the custody of the City's child welfare system,
who were or would be at the risk of abuse or neglect, and whose status
was known to the responsible City agency. Defendants moved to dismiss the
complaint and opposed the motion for class certification. The Court
denied defendants' motion to dismiss and granted plaintiffs' motion for
class certification in an opinion dated June 18, 1996. See generally
Marisol I, 929 F. Supp. 662.

On the eve of trial, which was to commence on July 27, 1998, the
parties informed the Court that they were engaged in settlement
negotiations. The trial was adjourned and on December 2, 1998, after four
months of negotiations, two Settlement Agreements were filed with the
Court. One Settlement Agreement was between plaintiffs and the City
defendants and the other was between plaintiffs and the State. The Court
approved the Settlement Agreements on March 31, 1999. See generally
Marisol II, 185 F.R.D. 152.

The Settlement Agreement between plaintiffs and the City defendants
established an Advisory Panel of experts in the child welfare field. Id.
at 157. The Administration for Children's Services ("ACS") agreed to
cooperate with the Advisory Panel and to provide the Panel with full
access to information, documents, and personnel. Id. at 158. The Advisory
Panel is required to produce reports to determine whether ACS is acting
in good faith in making efforts toward reform in certain areas. Id. If
the Advisory Panel determines that ACS is not acting in good faith,
plaintiffs may seek judicial relief. Id. The City Settlement Agreement,
which expires on December 15, 2000, contains certain limitations on the
filing of lawsuits through covenants not to sue and release provisions.
Id. at 158-59.

Plaintiffs filed the instant motion while an appeal of the Court's
approval of the Settlement Agreements was pending. The Court delayed
ruling on the motion until the appeal was decided. The Court's decision
was affirmed on July 10, 2000.

DISCUSSION

In federal civil rights actions, "the court, in its discretion, may
allow the prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs." 42 U.S.C. § 1988(b). The
parties agree that plaintiffs are prevailing parties for purposes of
§ 1988. Therefore, the only issue remaining is determining an award
of reasonable attorney's fees.

I. Calculating Fees With the "Lodestar" Method

"The most useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate." Hensley v.
Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The
result of this
calculation, the so-called "lodestar" figure, is presumed to be the
reasonable fee. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d
Cir. 1998) (citations omitted). Plaintiffs have the burden of submitting
evidence supporting the hours worked and rates claimed. Hensley, 461
U.S. at 433, 103 S.Ct. 1933. If the documentation is inadequate, for
example, if it reflects excessive or redundant time, the court may reduce
the award accordingly. Id. at 43334, 103 S.Ct. 1933.

The Court will first determine plaintiffs' attorneys' reasonable hourly
rates. It will then decide how many hours were reasonably expended on the
litigation and consider whether any reduction in the lodestar amount is
warranted.

A. Calculating the Reasonable Hourly Rate

In determining the reasonable hourly rate to be applied, the Court
should look to market rates "`prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience, and
reputation.'" Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998)
(quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79
L.Ed.2d 891 (1984)). The relevant community to which the court should
look is the district in which the case was brought. See In re Agent
Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987). The rates
used by the Court should be "`current rather than historic hourly
rates.'" Gierlinger, 160 F.3d at 882 (quoting Missouri v. Jenkins,
491 U.S. 274, 284, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989)).

Furthermore, non-profit civil rights attorneys should receive a "`fully
compensatory fee,'" Jenkins, 491 U.S. at 286, 109 S.Ct. 2463 (quoting
Hensley, 461 U.S. at 435, 103 S.Ct. 1933), "comparable to what `is
traditional with attorneys compensated by a fee-paying client.'" Id
(quoting S.Rep. No. 94-1011, p. 6 (1976), U.S. Code Cong. & Admin.
News 1976, pp. 5908, 5913); see also Blum, 465 U.S. at 895, 104 S.Ct.
1541 ("The statute and legislative history establish that `reasonable
fees' under § 1988 are to be calculated according to the prevailing
market rates in the relevant community, regardless of whether plaintiff
is represented by private or nonprofit counsel.").

Plaintiffs are also entitled to seek fees for paralegal services. See
Jenkins, 491 U.S. at 286-87, 109 S.Ct. 2463; United States Football
League v. National Football League, 887 F.2d 408, 415-16 (2d Cir. 1989),
cert. denied, 493 U.S. 1071, 110 S.Ct. 1116, 107 L.Ed.2d 1022 (1990).
Like the work performed by attorneys, the work performed by paralegals is
billed by using the prevailing hourly rate for paralegal services in the
community. United States Football League, 887 F.2d at 416.

With respect to Marcia Robinson Lowry, the director of CRI and lead
attorney in this case, plaintiffs request an hourly rate of $450.
Notwithstanding the rate scale described above, Ms. Lowry is awarded $375
per hour as lead attorney and because she has great expertise in child
welfare litigation. Ms. Lowry has been working on child welfare matters
since the early 1970s. She is the founder and executive director of CRI
and brings with her a level of experience in, and understanding of, the
issues that undoubtedly conferred a considerable benefit on the
plaintiffs. The remaining CRI attorneys' fees will be calculated as
follows:

Plaintiffs propose rates for Schulte in accordance with the hourly
rates actually charged to the firms' fee-paying clients in the normal
course of the firm's business. The hourly rates requested for Schulte
range from $140 for first year associates to $515 for the senior
partner, David Brodsky. According to the affidavit of Mr. Brodsky, these
rates are consistent with those charged by other large New York City law
firms.

Based on the cases cited above, however, the Court finds that a more
reasonable rate scale is the one the Court used for CRI attorneys.
Because Mr. Brodsky, a seasoned litigator with over thirty years of
experience, served as co-lead counsel with Ms. Lowry and made a
significant contribution to the settlement of the case, he is also
awarded $375 per hour.

Although, courts have recognized that attorneys at large "Wall Street"
law firms may receive higher compensation due to the higher overhead and
additional costs associated with practice at such firms, see, e.g.,
Rodriguez, 84 F. Supp.2d at 421-22 (and cases cited therein), the Court
finds that the rate scale used above adequately takes into account these
additional costs and is consistent with hourly rates awarded to other
large firms in this district. See, e.g., National Helicopter, 1999 WL
562031, at *6 (finding that rates of $300450 for partners and $140-295
for associates at Dewey Ballantine are reasonable at the lower end of
those scales); Rodriguez, 84 F. Supp.2d at 422 (awarding attorneys at
Chadbourne & Parke $425 for senior partner who was an experienced
civil rights lawyer, $240 for attorney with four years of experience, and
$175 for attorney with two years of experience); TM Park Ave. Assocs., 44
F. Supp.2d at 166-68 (applying New York City rates and awarding senior
partner at Stroock Stroock & Lavan $275 hourly rate instead of
requested $460 to $505 rate, and awarding partners at Debevoise &
Plimpton and Rosenman & Colin $275 hourly rate, while awarding $200
to senior associates and $175 to junior associates).*fn4

Karen Freedman is the co-founder and executive director of LCI. She has
an average of seventeen years of experience over the course of the
litigation, and therefore, will be compensated at an hourly rate of
$350.

B. Number of Hours Reasonably Expended

In determining whether the hours expended by the parties was
reasonable, the Court must

"examine the hours expended by counsel and the value
of the work product of the particular expenditures to
the client's case. . . . In making this examination,
the district court does not play the role of an
uninformed arbiter but may look to its own familiarity
with the case and its experience generally as well as
to the evidentiary submissions and arguments of the
parties."

Some reduction in plaintiffs' fee award is warranted. The Court will
address each area of contention below and explain its reasoning with
regard to any reduction. However, rather than reducing a certain number
of unreasonably billed hours, the Court will make an across-the-board
percentage cut in plaintiffs' fee award as is necessary and appropriate.
See, e.g., In re Agent Orange, 818 F.2d at 237 (stating that "in cases in
which substantial numbers of voluminous fee petitions are filed, the
district court has the authority to make across-the-board percentage cuts
in hours `as a practical means of trimming fat from a fee application.'"
(quoting New York State Ass'n for Retarded Children, Inc. v. Carey,
711 F.2d 1136, 1146 (2d Cir. 1983)); see also United States Football
League, 887 F.2d at 415 (approving a percentage reduction of total fee
award to account for vagueness in documentation of certain time
entries).

In the present case, a significant amount of plaintiffs' work was
performed in furtherance of their case against both the City defendants
and the State. Even where plaintiffs' time records seem to describe work
done solely in relation to the State defendants, that work actually aided
plaintiffs in their case against the City defendants. It is fair and
reasonable for plaintiffs to recover fees from the City defendants for
all the work that assisted plaintiffs in their case against the City even
if the records describe work against the State only.

Some work was performed solely in relation to plaintiffs' case against
the State. It would be unfair to require the City defendants to pay these
fees. However, it would be difficult, if not impossible, to specifically
identify the time spent by plaintiffs on issues unique to the State.
Therefore, the Court will take this matter into consideration when it
reduces plaintiffs' overall fee request.

2. Time Spent on "Clerical" or "Secretarial" Tasks

Defendants argue that plaintiffs unreasonably billed attorneys' and
paralegals' rates for tasks such as copying, faxing, typing, and creating
and maintaining a database. They also contend that plaintiffs erroneously
billed for time spent serving and filing papers. In response, plaintiffs
have withdrawn 180.20 of CRI's hours and 40.90 of Schulte's hours which
were spent on clerical activities. However, they oppose any reduction in
the amount of time spent on what they characterize as "non-clerical work
expended on the management and organization of the massive volume of
documents and the maintenance of a deposition database." Plaintiffs'
Reply Memorandum of Law in Support of Their Motion for Attorney's Fees
and Expenses, at 47 ("Pl.Br."). Plaintiffs also oppose any reduction in
hours expended serving and filing papers.

This Court has previously recognized that clerical and secretarial
services are part of overhead and are not generally charged to clients.
Williams, 975 F. Supp. at 324 (citations omitted). Plaintiffs have
appropriately reduced their request in recognition of that fact. The Court
agrees with plaintiffs, however, that the work performed in furtherance
of organizing the countless number of documents in this case and
maintaining a litigation-related database is fully compensable. As
plaintiffs state, this work required a comprehensive understanding of, and
familiarity with, the substance of the case. Furthermore, plaintiffs have
shown that such work is customarily billed to fee-paying clients. See
Reply Affirmation of Jess A. Velona in Support of Application for
Attorneys' Fees and Expenses, at ¶ 35 ("Velona Aff."). Therefore, the
Court will not make any further reduction to reflect time spent on these
tasks.

Defendants contend that plaintiffs should not be compensated for time
spent on case preparation that ultimately appeared to be unnecessary and
arguing motions in which they were unsuccessful. Plaintiffs agree to
withdraw numerous hours, but maintain that some of the work challenged by
defendants is fully compensable. The Court will address each matter on
which the parties continue to disagree.

a. Dean Mary Davidson

Plaintiffs expended 157 hours working with Dean Mary Davidson of
Rutgers University School of Social Work, whom plaintiffs intended to use
as an expert at trial. However, plaintiffs ultimately decided to withdraw
Dean Davidson as one of their experts. Plaintiffs nevertheless contend
that her assistance in reviewing plaintiffs' case files was indispensable
and therefore, reasonable and compensable. Defendants argue that the time
spent with Dean Davidson should be eliminated because the work she
performed was presumably duplicated by plaintiffs' other expert, Katherine
Briar-Lawson.

The Court finds that the time spent with Dean Davidson is fully
compensable. It is a reality of complex litigation such as this that both
parties will engage in a great deal of case preparation which will not
necessarily lead to information that will be used at trial. Such work may
include reviewing documents, interviewing witnesses, and, like the
present case, working with experts. So long as a reasonable attorney would
engage in the work under similar circumstances, the Court will not
prevent plaintiffs from recovering their fees. See, e.g., David C. v.
Leavitt, 900 F. Supp. 1547, 1560 (Utah 1995) (finding that time spent
with an expert who did not testify at trial was compensable "so long as
the time was reasonably expended in litigation of the plaintiffs case")
(citing Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1254 (10th Cir. 1992),
cert. denied, 507 U.S. 973, 113 S.Ct. 1417, 122 L.Ed.2d 787 (1993)).

The Court is satisfied that the work performed with respect to Dean
Davidson was reasonable. Dean Davidson assisted plaintiffs in determining
whether the named plaintiffs' foster care cases were being handled by the
relevant City agencies pursuant to mandatory and accepted practices and
procedures governing the foster care system. In doing so, she aided
plaintiffs in the litigation even though she was withdrawn as a trial
expert. Furthermore, there is no evidence suggesting that the work of
plaintiffs' other expert, Ms. Briar-Lawson, was duplicative of Dean
Davidson's efforts.*fn7

In the present case, plaintiffs' efforts in moving to dismiss
defendants' interlocutory appeal and their petition for certiorari were
clearly reasonable. In denying plaintiffs' motion, the Second Circuit
recognized that neither it nor the Supreme Court had squarely addressed
the issue raised by plaintiffs. See Marisol III, 104 F.3d at 527.
Furthermore, the Court agrees with plaintiffs that preventing them and
other prevailing parties from recovering fees for unsuccessful efforts
during the course of an otherwise successful litigation may discourage
attorneys from zealously representing their clients and raising novel but
reasonable arguments on their behalf. Therefore, the Court finds that
plaintiffs are entitled to recover attorneys' fees for the work performed
in connection with these motions.*fn8

c. Time Spent Moving For Contempt

In January 1998, plaintiffs moved for contempt of an interim
stipulation and order concerning overnights at one of the City's
pre-placement centers, where children were taken to await placement in
foster care. The interim stipulation mandated that no child be kept at
the Laight Street Pre-Placement Center for more than one night in any
thirty day period. While this litigation was ongoing, plaintiffs alleged
that this provision was being violated.

d. Time Spent on the "St. Vincent's Hospital and Medical Center
Administration for Children's Services" Survey

In January 1998, a report submitted by two of plaintiffs' experts
alleged that some children's lives were in jeopardy because defendants
failed to take appropriate actions on their behalf. The Court ordered
plaintiffs to produce additional information in support of these
allegations. Specifically, the Court directed plaintiffs to search for
letters written to the ACS Commissioner concerning this matter and to
compile a list of children whose lives were in jeopardy. In response,
plaintiffs produced a statistical survey known as the St. Vincent's
Hospital and Medical Center Administration for Children's Services
Survey, which the Court characterized as an expert report. The Court
granted defendants' motion in limine precluding this report because the
report was filed late, twenty-one days after plaintiffs' expert reports
were due. See Rubin Dec., Exhibit 25, at 8-9.

Defendants argue that the sixty-nine hours spent by plaintiffs on this
issue should be eliminated. Plaintiffs respond by agreeing to withdraw
half of these hours but inexplicably insist on being compensated for the
other half. The Court finds that plaintiffs' efforts with regard to this
issue were unreasonable, as they were not responsive to the Court's
request and did not comply with the time-table set by the Court for
compliance with its order. Therefore, the Court will eliminate the
remaining hours spent by plaintiffs on this issue.*fn9

6. Time Spent by Attorneys on "Paralegal Tasks"

Defendants contend that 196 of CRI's attorneys' hours and 77 of
Schulte's attorneys' hours were spent on tasks that should have been
delegated to paralegals. Therefore, defendants argue, fees for these
hours should be calculated at paralegals' rates.

Defendants contend that plaintiffs only achieved partial success and
therefore, should not recover their full fee request. Defendants point
out that

plaintiffs initially sought . . . to take over the
entire operation of the child welfare agency —
ousting the agency head in favor of a court-appointed
receiver to oversee and direct the implementation of
all the detailed injunctive relief plaintiffs were
hoping to obtain from the court, with the power to
restructure the New York City child welfare system.

B. Whether Plaintiffs Could Have Obtained the Same Relief Earlier in
the Litigation

Defendants also argue that plaintiffs' fees should be reduced because
they could have settled this matter earlier for the same relief, thus
avoiding the need for protracted litigation.

The Second Circuit has recognized that "[a] district court should not
rely on informal negotiations and hindsight to determine whether further
litigation was warranted and, accordingly, whether attorney's fees should
be awarded." Ortiz v. Regan, 980 F.2d 138, 140 (2d Cir. 1992).
Nevertheless, courts have reduced fee awards where plaintiffs
unreasonably rejected settlement offers and eventually obtained relief
which they could have gotten by settling earlier. See, e.g., Raishevich
v. Foster, 70 F. Supp.2d 411, 415 (S.D.N.Y. 1999) (rejecting award of
attorneys' fees where plaintiffs refused a realistic offer to settle
early in the case); NAACP v. Town of East Haven, 44 F. Supp.2d 422,
428-29 (Conn. 1999) (reducing fee award where judgment was of limited
success compared to the relief that was offered before initiation of the
lawsuit).

The Court finds that plaintiffs never unreasonably rejected a
settlement proposal similar to the one eventually reached by the
parties. The first time anything resembling settlement negotiations took
place was in April 1997. At that time, ACS Commissioner Nicholas Scoppetta
proposed to Ms. Lowry, in the most general terms, ways that the litigation
might be
settled.*fn12 Commissioner Scoppetta initially suggested that a neutral
expert would perform a series of agreed upon tasks, including reviewing a
Reform Plan drafted by ACS in 1996 and recommending ways the Plan might
be strengthened, reviewing ACS's progress towards achieving the
objectives in the Plan, and reporting to the Court on whether ACS was
acting in good faith in its reform efforts. See Affidavit of Nicholas
Scoppetta at ¶ 7 ("Scoppetta Aff."). Ms. Lowry responded that the
Reform Plan was not sufficiently detailed to be considered as part of a
settlement. Commissioner Scoppetta then told her that defendants would
not agree to the type of rigid and prescriptive consent degree originally
sought by plaintiffs. Id. at ¶ 8.

When the two met again in May 1997, further discussions ensued but
neither party made a concrete settlement offer to the other. They simply
agreed that Ms. Lowry would draft an outline of what she believed a
settlement should look like. Id. at ¶ 9. Subsequently, Ms. Lowry sent
a draft of her proposal containing terms to which Commissioner Scoppetta
immediately objected on the grounds that, in addition to being too rigid
and prescriptive, the draft did not contain any of the concepts or ideas
contained in his proposal of April 1997. Id. at ¶ 10.

Nevertheless, the parties agreed to meet again. At the next meeting,
Ms. Lowry explained what an agreement between the parties would have to
look like in order for plaintiffs to seriously consider settling the
case. Defendants rejected her proposal. Id. at ¶ 15.

The next business day, plaintiffs served the City defendants with the
motion for an injunction and temporary restraining order in relation to
the Laight Street Pre-Placement Center. This action abruptly ended the
settlement negotiations between the parties.

Based on these events, the Court finds that plaintiffs never
unreasonably rejected a settlement offer from defendants, nor could they
have settled this case at an earlier time. Although there was some
discussion of terms that resembled what would eventually be embodied in
the final settlement agreement between the parties, the discussion was
informal at best and did not present any concrete opportunity for ending
the litigation. The parties were still considerably far apart at this
early stage of the negotiations as evidenced by the fact that neither was
willing to consider any portion of the proposals made by the other.
Therefore, the Court will not reduce plaintiffs' fee award on this
ground.*fn13

In addition to attorneys' fees, plaintiffs seek reimbursement for
out-of-pocket expenses in the amount of $200,609.70 for CRI and
$51,948.52 for Schulte. Defendants have challenged this request on
numerous grounds.

It is well-settled that "`attorney's fees awards include those
reasonable out-of-pocket expenses incurred by attorneys and ordinarily
charged to their clients.'" LeBlanc-Sternberg, 143 F.3d at 763 (quoting
United States Football League, 887 F.2d at 416). Courts have identified
the following non-exhaustive list of expenses as those ordinarily charged
to clients, and therefore, recoverable: photocopying, travel, telephone
costs, and postage. See id. (citing cases).

Because § 1920 governs the cost of court transcripts, the Court
must follow the procedures governing such costs found in Local Rule
54.1(c)(1) unless another statute or rule permits it to do otherwise.
Plaintiffs suggest that § 1988 does just that. The Court disagrees.
Nothing in § 1988 explicitly permits the Court to tax costs
associated with court transcripts, nor have plaintiffs cited any case
that stands for the proposition that § 1988 overrules § 1920 and
the rules of procedure with which it operates. See, e.g., Crawford, 482
U.S. at 445, 107 S.Ct. 2494 (stating that where costs associated with
witness fees was a matter governed by § 1920, "[w]e will not lightly
infer that Congress has repealed [§ 1920], either through Rule 54(d)
or any other provision not referring explicitly to witness fees").

Accordingly, under Local Rule 54.1(c)(1), the costs associated with
transcripts of court proceedings are not taxable to defendants, as
plaintiffs did not comply with the mandates of the local rule by seeking
advance authorization or an order of the court. The Court will therefore
reduce CRI's expense request by $10,786.63.*fn16

The Court has considered defendants' remaining challenges to
plaintiffs' expense request and finds that they lack merit. Accordingly,
defendants are assessed $183,414.33 for CRI's expenses
($200,609.70-$17,195.37) and $51,926.69 for Schulte's expenses
($51,948.52-$21.83), for a total of $235,341.02.

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